2016 ONSC 6241, 2016 ONSC 6241

CITATION : Owen v. The Estate of Barbara Owen , 2016 ONSC 6241 COURT FILE NO.: 10-47708 DATE: 2016/10/06 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Phillip Owen, Plaintiff AND: The Estate of Barbara Owen, Deceased BEFORE: Mr. Justice Stanley Kershman COUNSEL: Claude-Alain Burdet, Counsel for the Plaintiff Pam MacEachern, Counsel for Pamela Owen Lafrance, as Litigation Guardian Prior to Death E. Jane Murray, Counsel for the Estate Trustee During Litigation HEARD: via written submissions COSTS ENDORSEMENT KERSHMAN J. [ 1 ] On April 19, 2016 the Plaintiff withdrew his claim against the Defendant.

On consent, the Plaintiff consented to judgment against him on the counterclaim for $21,649.81. [ 2 ] On that date, the Court ordered that costs submissions be provided with respect to the issue of costs. Those costs submissions have now been received and reviewed. Position of the Parties Plaintiff’s Position [ 3 ] Initially in his written costs submissions, Mr. Owen argues that each party should bear their own costs, which would reflect, he says, the longstanding attitude of his parents.

He argues that his deceased mother did not change her will during litigation, even though he claims that she was capable to do so. [ 4 ] Later on in his written costs submissions, Mr. Owen argues that it would be fair to have the Estate cover the costs of the action, since because at one point, he agreed to drop his claim at no cost.

Position of Pamela Owen Lafrance as Litigation Guardian Prior to Death [ 5 ] The Litigation Guardian Prior to Death argues that the Plaintiff should be required to pay the costs of that claim on a full indemnity basis fixed at $67,558.79 to the date of death, together with the costs incurred by the Estate Trustee in the litigation. [ 6 ] The Litigation Guardian argues that the amount claimed and recovered in the proceeding dealt with the declaration of ownership and vesting order in relation to the Plaintiff’s mother’s condominium located at 310-35 Murray Street, having an approximate value of $340,000.00. [ 7 ] The Litigation Guardian argues that the proceedings were complex due to the conduct of the Plaintiff, which required 12 or more court appearances in relation to the civil matter. [ 8 ] It is argued that the Plaintiff’s Certificate of Pending Litigation prevented the condominium from being sold, and the proceeds from being used for Barbara Owen’s needs thereby depleting her financial resources. [ 9 ] The Litigation Guardian argues that the issues were of utmost importance to the late Ms.

Owen because the condominium was her largest asset. She was an 84-year-old widow at the time that Mr. Owen commenced the litigation. [ 10 ] In terms of conduct intended to unnecessarily shorten or lengthen the duration of the proceedings, the Litigation Guardian argues that the Plaintiff should never have started the action.

The Plaintiff was charged and found guilty of fraud in relation to the condominium parking space, as well as other matters. [ 11 ] The Litigation Guardian argues that the Plaintiff’s actions warrant an award of full indemnity costs. [ 12 ] In addition, the Litigation Guardian argues that the Plaintiff did not comply with the March 25, 2010 Order of Justice McKinnon, requiring him to pay the carrying costs of the condominium. He also did not comply with the Costs Order of Master Roger dated May 28, 2010.

This necessitated the Litigation Guardian bringing a contempt motion in conjunction with a motion to vacate the Certificate of Pending Litigation. Two days prior to that motion, the Plaintiff paid the sums required under the two Orders.

[13] On a decision on the motion of September 24, 2010, released on October 7, 2010, with the Litigation Guardian beingsuccessful, the Plaintiff failed to approve the Litigation Guardian’s draft Order, resulting in further delay and expense.

The LitigationGuardian’s counsel had to appear before the Registrar on December 16, 2010 to have the Order issued. [14] The Plaintiff also refused to approve the March 25, 2010 draft Order and May 28, 2010 draft Order. [15] Lastly, the Plaintiff refused to execute a consent to the Bank of Montreal to release the bond despite an Order on the motion ofSeptember 24, 2010, thus requiring the Litigation Guardian to bring a contempt motion, which was adjourned both for administrativereasons and at the Plaintiff’s request, so that he could retain new counsel.

The matter was ultimately not dealt with due to BarbaraOwen’s death. [16] In terms of steps that were either improper, vexatious, unnecessary, or taken through negligence, mistake or excessive caution,the Litigation Guardian argues that the entire proceedings were brought about and continued as a result of the Plaintiff’s illegal andvexatious actions. [17] The Litigation Guardian claims that costs should be awarded on a full indemnity basis based on Tsymbalarou v.

Gordon, 2013ONSC 6406 , where the Court noted that the party’s fraudulent conduct is the basis on which to make an Order for fullindemnity costs (at paras. 17-19). Position of the Trustee During Litigation [18] The Trustee During Litigation does not take any position regarding liability of the Plaintiff for costs. [19] It was noted that some of the costs incurred by the Estate Trustee During Litigation related to the administration of the estateand would have been incurred even if the Plaintiff had not commenced an action.

Based on the “rule of thumb” of 5% used to calculatethe executor’s compensation, and applied to the estimated estate value of $500,000.00, it was submitted that it is reasonable to concludethat the estate might have incurred costs in the order of $25,000.00 for the administration of the estate, even in the absence of litigation. [20] On a partial indemnity basis, the net amount of costs claimed less $25,000.00 estate administration costs, would have been$13,540.33. On a substantial indemnity basis, they would have been $27,555.26. On a full indemnity basis, they would have been$33,394.73.

Analysis [21] The overall objective of the costs process is to fix an amount that is fair and reasonable for the unsuccessful party to pay. Theobjective is not to simply take what the successful parties’ counsel alleges as their actual costs. The fixing of costs by a judge is not anitem-by-item assessment but rather an attempt to consider the bill as a whole, and the work reasonably required to achieve the result inlight of the factors in rule 57.01(1). Boucher v. Public Accountants Council (Ontario) (2004), (ON CA), 71 O.R. (3d) 291 (Ont. C.A.); Noble v. Noble, 17 C.P.C. (6th) 46 (Ont.

S.C.J. [Commercial List]). [22] Section 131(1) of the Courts of Justice Act, R.S.O. 190, c.

C.43 provides that an award of costs is a matter in the discretion ofthe Court. [23] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, RRO 1990 Reg 194.Those factors include: the result in the proceeding, the amount the unsuccessful party could reasonably expect to pay, the amountclaimed and recovered, the complexity of the matter, the importance of the issues, the conduct of any party which unnecessarilylengthened the proceeding, Offers to Settle, the principles of proportionality, and the hourly rate claimed in relation to the partialindemnity rates set out in the Information to the Profession. [24] This matter involved a claim and a crossclaim.

The original claim related to a declaration seeking ownership of thecondominium at 310-35 Murray Street. [25] The crossclaim was for damages for breach of trust as well as damages resulting from the registration of a Certificate of PendingLitigation. [26] At trial, the Plaintiff withdrew his claim, save and except with respect to the issue of costs, which were to be assessed and adetermination was to be made as to who was entitled to costs. [27] The Plaintiff consented to judgment in favour of the Trustee During Litigation in relation to the counterclaim in the amount of$21,649.82. [28] In terms of success, the Court finds that both Defendants were successful, both in relation to the claim and the counterclaim. [29] The Litigation Guardian Prior to Death is claiming costs on a full indemnity basis by virtue of the actions of the Plaintiff in thismatter, including in fact, bringing the action when he was subsequently found guilty of defrauding his mother of a condominium parkingspace, having a value of over $5,000.00, contrary to

section 380(

a) of the Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”);perjury in the form of making a false land transfer tax affidavit contrary to

section 132 of the Criminal Code: using a forged document, atransfer deed of land, as if it were genuine, contrary to section 368(1)(

a) of the Criminal Code; and breach of his recognizance regardingkeeping the peace and being of good behavior contrary to section 143(3) of the Criminal Code. [30] The Plaintiff was sentenced to 18 months incarceration, together with a probationary period of two years and a no-contactcondition during the term of his incarceration. [31] Mr. Owen appealed his criminal conviction and that appeal was dismissed.

[32] The Litigation Guardian Prior to Death argues that costs should be payable on a full indemnity basis, and relies on the case ofTsymbalarou v. Gordon, 2013 ONSC 5358. In that case, the Court ordered costs on a full indemnity basis, meaning that the Plaintiffswere entitled to recover all that they had expended in the action. That Court in turn relied on the case of Union Carbide Canada Ltd. v.Vanderkop (1976), 1 CPC 114, in coming to that conclusion. [33] This case was important to all parties.

It dealt with the condominium being a major asset in the Estate. [34] As to conduct tending to lengthen the proceedings, the Court finds that the Plaintiff’s conduct did lengthen these proceedings.The following are some examples of such conduct; i. The Plaintiff was found guilty of fraud in relation to the transfer of the condominium parking space as well asguilty of other matters; ii. The Plaintiff did not comply with the Order of Justice Mackinnon dated March 25, 2010 requiring him to paythe carrying costs of the condominium; iii.

The Plaintiff did not comply with the costs order of Master Roger dated May 28, 2010 which necessitated thebringing of a contempt motion in conjunction with a motion to vacate the Certificate Pending Litigation; iv. The Plaintiff failed to approve the Defendant’s draft Order in relation to a decision released on October 7,2010; v. In addition, the Plaintiff refused to approve the March 25, 2010 draft Order and the May 28, 2010 draftOrder; vi.

The Plaintiff refused to execute a consent to the Bank of Montreal to release the bond despite an order of theCourt. [35] The Plaintiff argues that it made an Offer to Settle this matter. [36] The Court finds that the Offer to Settle made by the Plaintiff was not an Offer to Settle in accordance with s. 49 of the Rules ofCivil Procedure. [37] A consideration in fixing costs includes what is fair and reasonable. As stated by Smith J., in the case of John Deere FinancialInc. v. 1232291Ontario Inc., 2016 ONSC 888 at paras. 18 and 19: 18.

The principle of fairness and reasonableness is the major guiding principle in the fixing of costs. It was succinctly stated by BorinsJ.A. when he observed that an award of costs must: …reflect “more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than anyexact measure of the actual costs to the successful litigant”. This is a fundamental concept in fixing or assessing costs. (Moon v. Sher, (2004) (ON CA), 246 D.L.R. (4th) 440 at para. 30 (Ont. C.A.)) 19. The Court of Appeal also endorsed this principle in Zesta Engineering Ltd. v.

Cloutier (ON CA), [2002] O.J.No. 4495 (Ont.

C.A.)): In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by theunsuccessful party rather than any exact measure of the actual costs of the successful litigant. [38] Following the reasoning in the Tsymbalarou case and the aforesaid analysis, the Court finds that both Defendants are entitled totheir costs on a full indemnity basis. [39] In terms of the quantum of costs, the Court finds that the amounts claimed on a full indemnity basis by both Defendants aresomewhat high, and reduces them to the amounts set out below. [40] Costs are awarded to the Defendant Litigation Guardian Prior to Death in the amount of $60,500 including disbursements andHST payable by the Plaintiff. [41] Costs are awarded to the Defendant Estate Trustee During Litigation fixed at the amount of $30,000 inclusive of disbursementsand HST payable by the Plaintiff. [42] These costs shall be paid firstly out of any moneys that Mr.

Owen would be entitled to from the Estate of Barbara Owen. In theevent that any costs remain due and owing after payment from his share of the Estate, they will be paid by Mr. Owen personally withinthirty days after the release of the estate moneys used to pay the costs. [43] The aforesaid costs relate to both files 10-47708 and 11-51771. [44] These costs bear interest from the date of release of this Endorsement at the post-judgment interest rate prescribed by the Courtsof Justice Act. [45] Order accordingly.

Justice Stanley Kershman Date: October 6, 2016 CITATION : Owen v. The Estate of Barbara Owen , 2016 ONSC 6241 COURT FILE NO.: 10-47708 DATE: 2016/10/06 ONTARIO SUPERIOR COURT OF JUSTICE RE: Phillip Owen, Plaintiff AND: The Estate of Barbara Owen (Deceased) BEFORE: Mr. Justice Stanley Kershman COUNSEL: Claude-Alain Burdet, Counsel for the Plaintiff Pam MacEachern, Counsel for Pamela Owen Lafrance, as Litigation Guardian Prior to Death E. Jane Murray, Counsel for the Estate Trustee During Litigation COSTS ENDORSEMENT Justice Stanley Kershman Released: October 6, 2016